A federal appeals court appeared skeptical on Monday of lawyers challenging President Donald Trump‘s use of the Alien Enemies Act, as his reliance on the 18th-century law appears increasingly poised to reach the Supreme Court.
During a hearing in a New Orleans courtroom, the judges appeared more skeptical of attorneys from the American Civil Liberties Union who questioned the lawfulness of Trump invoking the Alien Enemies Act. The panel hearing arguments Monday included Judges Leslie Southwick, an appointee of former President George W. Bush; Andrew Oldham, a Trump appointee; and Irma Ramirez, an appointee of former President Joe Biden.
Trump issued an order in March invoking the Alien Enemies Act to speed up deportations of the Venezuelan gang Tren de Aragua. He declared an invasion by the gang, as the legislation requires a “predatory incursion” in order to be invoked. Trump has faced various legal challenges to that order, including the challenge by a group of Venezuelan nationals backed by the ACLU before the U.S. Court of Appeals for the 5th Circuit this week.
Lee Gelernt, an ACLU attorney for the Venezuelan nationals, faced numerous questions from the judges early in the hearing over claims that the Alien Enemies Act could not apply to Tren de Aragua under the circumstances Trump declared in his proclamation.
Gelernt argued that the government “is trying to have it both ways,” by broadening the definition of a “predatory incursion” while “not saying we’re in armed conflict with Venezuela.”
Oldham questioned whether the Supreme Court has ever ruled that a federal court may “countermand the president of the United States in his determination that we’re in an armed conflict.”
Gelernt acknowledged there was no such precedent but argued that the courts could review whether the president followed the law in invoking the AEA.
“I think we’re not countermanding the president. You’re simply interpreting the statute and then saying the proclamation on its face, if you couldn’t, in your words, countermand the president, there’d be no reason to even interpret the statute,” Gelernt said, pushing back on Oldham’s framing of his argument.
Drew Ensign, a lawyer for the Justice Department, defended Trump’s Alien Enemies Act proclamation as “plainly a lawful exercise of his extensive powers” and said the Department of Homeland Security had begun giving migrants more notice of DHS’s intention to deport them, following due process requirements. Ensign faced fewer questions from the judges than Gelernt did, but was pressed on timing and the ability of affected Venezuelan nationals to file habeas corpus petitions.
When asked by Southwick, Ensign said the DOJ “largely” endorses a federal district judge in Pennsylvania’s determination that Trump’s Alien Enemies Act proclamation was “sufficient.” Southwick questioned Ensign about whether the determination by Trump that Tren de Aragua’s presence necessitated the use of the Alien Enemies Act was too wide-ranging, but the DOJ lawyer pushed back, noting Tren de Aragua is designated as a foreign terrorist organization.
“That is a characteristic that is quite rare, and is one that reflects the particular dangerousness that TDA poses, including, again, they’re in more than 40 states in the United States, that is not common. They’ve taken over entire apartment buildings where they’ve acted as a law to themselves,” Ensign said.
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“These are very unique factors that help TDA radically squeeze within the definition that Western District of Pennsylvania has provided, but are not broadly shared,” he added.
The panel of appellate judges did not offer a timeline to rule on Trump’s use of the Alien Enemies Act, but the outcome will likely be appealed to the Supreme Court by whichever side the court rules against.